Reza, Troy Anthony v. State ( 2006 )

Affirmed and Memorandum Opinion filed August 10, 2006

Affirmed and Memorandum Opinion filed August 10, 2006.

In The

Fourteenth Court of Appeals

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NOS. 14-05-00420-CR; 14-05-00421-CR; 14-05-00422-CR; 14-05-00423-CR;

14-05-00424-CR; 14-05-00425-CR; 14-05-00426-CR

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TROY ANTHONY REZA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause Nos. 04CR2356; 04CR2357; 04CR2358; 04CR2359; 04CR3096; 04CR3097; 04CR3098

M E M O R A N D U M   O P I N I O N

Appellant pleaded guilty to seven separate offenses consisting of three aggravated robberies, unlawful possession of a firearm by a felon, criminal attempted felony escape, taking a weapon from a peace officer, and assault on a public servant, with two prior enhancements.  At appellant=s election, his punishment was tried to the court, and at the conclusion of the trial, the court assessed punishment and sentenced appellant to sixty years= confinement in the Texas Department of Criminal Justice, Institutional Division on each count.  In one issue, appellant contends he received ineffective assistance of counsel at the punishment trial.  For the reasons stated below, we affirm.

Factual Background

On September 6, 2004, appellant committed three armed robberies in succession.  First, at approximately 2:45 a.m., he robbed the Galveston Econo Lodge desk clerk at gunpoint after inquiring about a room and asking for change.  The clerk, Andres Castaneda, feared for his life during the encounter.  When appellant told Castaneda to follow him as he moved toward the back door, Castaneda thought he was going to be shot, and so as soon as appellant went through one door, Castaneda locked the other door and called police.

Then, at approximately 5:00 a.m., appellant went to the Reef Resort, where he encountered the desk clerk, Gloria Gonzales.  As before, he robbed Gonzales at gunpoint after asking for a room rate and some change. Appellant stuck the gun in Gonzales=s back as she was getting appellant=s change, and when she turned around to face him, he put the gun in her stomach.  Gonzales feared appellant was going to kill her.  Appellant then grabbed the money and told Gonzales to close the door and not come out.

Later that same day, appellant committed yet another armed robbery, this time at a Walgreen=s Pharmacy.  Alex Flores, who was working in the photo department, was getting change for appellant when appellant pointed his gun at him.  After Flores helped appellant get the money out of the register, appellant then cocked his gun, aimed it at Flores=s head, and stated that he would kill Flores because Flores had seen him.  Flores tried to convince appellant to leave the store by telling him that he would not say anything about the incident and the store=s cameras did not work.  Appellant then put the gun back in his pocket and began to leave.  On his way out, appellant joked with another employee, Edward Jaramillo, Jr., but then took his gun out and cocked it and swung it around toward Jaramillo. Jaramillo implored appellant not to shoot him as he dropped to the floor in fear for his life. 

Appellant was later arrested and placed in the county jail.  On October 5, 2004, appellant was transported from the jail to the Galveston County courthouse.  At one point, appellant was being escorted from a courtroom to a holdover cell by Carlton Morgan, a Galveston County deputy sheriff and criminal bailiff assigned to the 10th District Court of Galveston County. As Morgan was placing his key into the cell door and opening it, appellant struck him in the face with a sharp object.  Morgan, bleeding from the wound, hit appellant in the eye with his fist, and the two began fighting.  During the struggle, appellant reached for Morgan=s gun, which came out of its holster.  Although Morgan=s hand was on his weapon the entire time, appellant was able to point it at him.  As appellant and Morgan were fighting over the weapon, another prisoner that had been in the holdover cell came running out, grabbed appellant, and pulled him away from Morgan.  Morgan was then able to get his weapon away from appellant and put it back in the holster.  Morgan continued fighting with appellant, who was eventually subdued with the help of another deputy.

Appellant was indicted in Galveston County in seven separate cases with the offenses of aggravated robbery, unlawful possession of a firearm by a felon, criminal attempted felony escape, taking a weapon from a peace officer, and assault on a public servant, with two prior convictions alleged for enhancement in each case.  Appellant pleaded guilty without a plea agreement and elected to have the court assess punishment. 

The punishment trial was held before the Honorable Frank Carmona, a visiting judge, in the 10th District Court.  Following the presentation of the State=s case, appellant testified on his own behalf.  He stated that he accepted responsibility for his actions, and he read a statement in which he apologized to Morgan and to the other victims. Appellant also identified a suicide note he had written on the day he assaulted Morgan.  He testified that he intended to get a gun to kill himself and he had no intention of killing Morgan.  On cross-examination, appellant admitted his prior record and said that he was not in his Aright frame of mind@ when he assaulted Morgan.  Appellant=s father and common-law wife also testified on appellant=s behalf.

Analysis of Appellant=s Issue

In his sole issue, appellant contends he received ineffective assistance of counsel because his attorney elicited testimony from Carlton Morgan, the bailiff of the 10th District Court and one of the complainants, concerning his recommendation for appellant=s punishment. Appellant points to the following exchange:

Q.      [W]hat do you think should happen to Mr. Reza?

A.      [Officer Morgan:]  You know, the way I feel, sir, he tried to take my life.

He don=t have a right to take my life.

I think he is wrong in his two left shoes, and because he tried to take my life, I think a life sentence would be a[n] excellent, excellent example for everybody in Galveston County to know we=re not going to tolerate this kind of behavior.

Appellant contends a victim=s punishment recommendation violates the limitations upon opinion testimony recognized in Sattiewhite v. State, 786 S.W.2d 271 (Tex. Crim. App. 1989).^[1] In Sattiewhite, the Court of Criminal Appeals held that the trial court did not err in refusing to permit an expert witness to testify concerning the punishment that should be assessed against the defendant.  Id. at 290B91.  The Court explained that A[t]he argument that a witness may recommend a particular punishment to the trier of fact has been soundly rejected@ and concluded that Asuch testimony would escalate into a >battle of the experts.=@ Id. at 90 (citing Schulz v. State, 446 S.W.2d 872 (Tex. Crim. App. 1969)).

Assuming for purposes of appellant=s issue that a complainant=s opinion testimony concerning punishment is inadmissible,^[2] we turn to appellant=s claim that his counsel=s question to Morgan constituted ineffective assistance of counsel.  Specifically, appellant contends that his counsel should not have asked the officer for a punishment recommendation, particularly when that officer was a deputy sheriff and the bailiff in the same court that was assessing appellant=s punishment.

To show that his trial counsel was ineffective, appellant must meet a two‑prong test. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).  First, appellant must show that his counsel=s performance was deficient; second, appellant must show the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687; Hernandez, 988 S.W.2d at 770 n.3.  Appellant must overcome the strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance.  Strickland, 466 U.S. at 689.  To defeat this presumption, A>any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.=@  Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)).

The record reveals that counsel=s decision to ask Morgan the complained-of question was not so deficient or so lacking in tactical or strategic decision-making as to overcome the presumption that counsel=s performance was reasonable and professional.  See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  Counsel asked the question after posing a series of questions attempting to lessen the degree of appellant=s culpability. More significantly, appellant=s father testified later in the trial that he had known Morgan for twenty years, and had asked him to forgive appellant for his actions.  According to appellant=s father, Morgan told him that he had received a letter of apology from appellant and had forgiven him.  Thus, appellant=s counsel, who was likely aware of these facts at the start of the punishment trial, may have believed that Morgan would provide favorable testimony in response to his question.

Moreover, appellant points to nothing in the record to explain counsel=s reasons for his conduct.  Without a specific explanation for counsel=s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective-assistance claim.  See Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813B14.  Therefore, based on the record before us, appellant has not satisfied the first Strickland prong by showing that counsel=s performance was deficient.  See Strickland, 466 U.S. at 687.

Even if we agreed with appellant=s argument that the allegedly improper question cannot be construed as trial strategyCand therefore we may find ineffective assistance on a silent recordCappellant has failed to demonstrate the second prong of StricklandCthat the alleged deficiency sufficiently prejudiced his defense.  See id.  The State argued that appellant should receive confinement for life as a habitual offender.  See Tex. Pen. Code ' 12.42(d) (providing that, upon conviction of a felony other than a state jail felony, a defendant who has two prior felony convictions shall be punished by imprisonment of between twenty‑five  to ninety‑nine years, or life).  The trial court, however, apparently rejected both the State=s argument and Morgan=s recommendation of a life sentence, instead assessing appellant=s punishment at sixty years= confinement. 

In reaching his decision, the trial judge explained that he had considered the evidence and the arguments of counsel, and had personally reviewed the exhibits.  The trial judge went on to examine appellant=s criminal history in detail, and concluded that he was sentencing appellant to sixty years= confinement so that if and when he is released, he Awill not be in a position to harm anybody else or put anybody in danger o[f] being harmed or killed.@  At no point did the trial judge indicate he had given any weight to Morgan=s recommendation of life imprisonment.  Therefore, even if counsel=s performance in asking for a punishment recommendation from Morgan were deficient, appellant cannot show that it prejudiced the trial court=s determination of appellant=s punishment.

Conclusion

We overrule appellant=s issue and affirm the judgment of the trial court.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed August 10, 2006.

Panel consists of Justices Hudson, Fowler, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant also contends that his attorney elicited the complainant=s punishment recommendation in violation of Texas Code of Criminal Procedure 42.03, section 1(b), which provides a procedure for victim impact statements, but requires that they be made after the court has assessed punishment, announced the terms and conditions of the sentence, and pronounced the sentence.  See Tex. Code Crim. Proc. art. 42.03, ' 1(b).  However, victim‑impact evidence or testimony generally may be admissible at the punishment phase when that evidence has some bearing on the defendant=s personal responsibility and moral culpability.  Haley v. State, 173 S.W.3d 510, 517 (Tex. Crim. App. 2005); see also Brown v. State, 875 S.W.2d 38, 40 (Tex. App.CAustin 1994, no pet.) (per curiam) (holding that article 42.03, section 1(b) does not prohibit the introduction of victim impact evidence at the punishment stage of trial).

^[2]  Several courts of appeals, including this one, have extended the Court=s holding in Sattiewhite to preclude non-expert testimony concerning a punishment recommendation.  See, e.g., Johnson v. State, 987 S.W.2d 79, 87 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d); Wright v. State, 962 S.W.2d 661, 663 (Tex. App.CFort Worth 1998, no pet.); Hughes v. State, 787 S.W.2d 193 (Tex. App.CCorpus Christi 1990, pet. ref'd).  However, in the more recent case of Fryer v. State, the Court of Criminal Appeals rejected a similar challenge to a victim=s recommendation, contained in a  pre-sentence investigation (APSI@) report, that the defendant not receive probation.  Fryer v. State, 68 S.W.3d 628 (Tex. Crim. App. 2002).  The Fryer court explained that Sattiewhite did not apply because it did not involve a PSI, but instead concerned the application of Texas Rule of Evidence 702 and was Afocused specifically on the unsuitability of expert testimony on the issue of appropriate punishment.@  Id. at 630B31. Moreover, the Court also appeared to suggest that a victim=s punishment recommendation may be admissible lay testimony under Rule 701.  See id. at 631 n.22 (AMoreover, Silva was arguably qualified to give lay opinion testimony under Rule 701 concerning appellant=s suitability for probation because she was acquainted with appellant and had first‑hand knowledge of the commission of the offense.@).  For this reason, we express no opinion concerning whether counsel=s question to Officer Morgan sought inadmissible testimony.